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Growing Acceptance Nationwide: More States Approve Marijuana Use

While the presidential election has attracted extreme attention, marijuana legalization initiatives were on the ballots in nine states on November 8, 2016. Four states – Arkansas, Florida, Montana, and North Dakota – approved measures providing for the medical use of marijuana, and three states – California, Massachusetts, and Nevada – approved initiatives allowing for recreational use.  The results in Maine are still close to call, but, if that measure is approved, it will be the fourth measure permitting recreational use.  Only one state (Arizona) defeated a marijuana legalization initiative.

The following chart summarizes the approved initiatives, including implications for employers:

State

Permitted Use

Employment Implications

 

 

Arkansas

Medical

Employers cannot discriminate based on “past or present status as a qualifying patient or designated caregiver,” but do not have a duty to accommodate an employee’s use “in a workplace” or “working under the influence.”

 

 

California

Recreational

The law does not impact employer’s rights to maintain a drug-free workplace or to prohibit marijuana use by employees or applicants, require the accommodation of marijuana use “in the workplace,” or prevent employers from complying with state or federal law.

 

 

Florida

Medical

No express employment provisions.

 

 

Maine

(results still pending)

Recreational

Employers are not required to accommodate use “in the workplace,” may enforce policies restricting use by employees, but may not refuse to employ someone “solely for that person’s consuming marijuana outside of the . . . employer’s . . . property.”

 

 

Massachusetts

Recreational

Employers are not required to accommodate use “in the workplace,” and may implement workplace policies regarding use by employees.

 

 

Montana

Medical

Employers are not required to accommodate use “by a registered cardholder, and may enter into contracts prohibiting use “for a debilitating medical condition.” Employees have no cause of action for wrongful termination or discrimination.

 

 

Nevada

Recreational

Employers may enforce workplace policies restricting or prohibiting use.

 

 

North Dakota

Medical

No express employment provisions.

While not all of the approved initiatives contain express employment protections for marijuana users, employers must contend with the apparent tension between enforcing a workplace drug policy and the state legalization of marijuana use. Because marijuana remains a controlled substance under federal law, maintenance of a zero-tolerance drug policy is likely the most prudent course of action.  Furthermore, employers may take note that each court to consider the wrongful termination claims brought by marijuana users under state laws has sided with employers’ rights to enforce drug-free workplace policies.

Nonetheless, as more states pass marijuana-related laws, and as off-duty marijuana users are discharged for positive drug tests, these policies may come under additional scrutiny in those states that do provide express employment protections. Going forward, employers should consistently enforce their drug-free workplace policies, and be prepared to educate employees about the potential consequence of a positive test for marijuana, regardless of state law protections.  Employers, however, should continue to monitor the legal landscape, particularly in those states providing express employment protections to marijuana users, in the event that courts in those jurisdictions require the accommodation of a worker’s off-duty marijuana use and to take adverse job action only when such an employee is impaired on the job.

©2020 Epstein Becker & Green, P.C. All rights reserved.

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About this Author

Nathaniel M. Glasser, Epstein Becker, Labor, Employment Attorney, Publishing
Member

NATHANIEL M. GLASSER is a Member of the Firm in the Labor and Employment practice, in the Washington, DC, office of Epstein Becker Green. His practice focuses on the representation of leading companies and firms, including publishing and media companies, financial services institutions, and law firms, in all areas of labor and employment relations.

Mr. Glasser’s experience includes:

  • Defending clients in employment litigation, from single-plaintiff to class action disputes,...

202-861-1863
Jonathan K. Hoerner, Epstein Becker law firm Life Sciences Attorney Washington D.C.,
Associate

JONATHAN K. HOERNER is an Associate in the Health Care and Life Sciences practice, in the Washington, DC, office of Epstein Becker Green.

Mr. Hoerner:

  • Defends health care and life sciences companies in litigation as well as in connection with federal and state government investigations, qui tam actions, and internal investigations related to health care fraud
  • Advises clients regarding fraud and abuse issues arising under anti-kickback laws, the Stark Law, and the False Claims Act
  • Assists clients in evaluating, developing, and implementing health care corporate compliance programs and compliance training programs
  • Advises a variety of health care providers—including hospitals, physician groups, nursing homes, ambulance providers, and various other health care facilities and businesses—in transactional and regulatory compliance matters arising under Medicare, Medicaid, and other third-party reimbursement programs
  • Advises Medicare Part C and Exchange plans on matters concerning risk adjustment payment including retraction and self-disclosures to CMS, enforcement counseling, and defense

At Saint Louis University School of Law, Mr. Hoerner completed concentrations in Health Law and Civil Litigation and achieved Academic Excellence Awards in Healthcare Fraud and Abuse, Healthcare Finance and Business Planning, Electronic Discovery, Legal Profession/Ethics, and Civil Litigation Practice. He also served as the Lead Editor of the Saint Louis University Law Journal.

Mr. Hoerner served as a Legal Extern at one of the nation’s largest nonprofit health care systems and as a Judicial Extern for the Honorable David D. Noce of the U.S. District Court for the Eastern District of Missouri.

202-861-1826